Burling v. Jones et al

Filing 14

MEMORANDUM AND OPINION entered. Burling's claim based on deliberate indifference to his serious medical needs is DISMISSED as frivolous. 28 U.S. C. § 1915A(b)(I). Any remaining pending motions are DENIED as moot. The TDCJ-CID must deduct tw enty percent of each deposit made to Burling's inmate trustaccount and forward payments to the court on a regular basis, provided the account exceeds $10.00, until the filing fee obligation of $350.00 is paid in full. (Signed by Judge Vanessa D Gilmore) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DONALD BURLING,
(TDCJ-CID #1026184)
Plaintiff,
vs.
WARDEN JONES, et al.,
Defendants.

§
§
§
§
§
§
§
§
§
§

January 25, 2017
David J. Bradley, Clerk

CIVIL ACTION H-16-0868

MEMORANDUM AND OPINION

I.

Background
Donald Burling, an inmate of the Texas Department of Criminal Justice - Correctional

Institutions Division, sued in March 2016, alleging the denial of medical care. Burling, representing
himself and without prepaying fees, sued: Warden Jones; Karen Faust, P A; Jamie Williams, Practice
Manager; Unknown first name Ruby, PA; Dr. Khan; Unknown name, Grievance Specialist Step Two
Medical Specialist; Dr. Jane Doe; Barry Norwood, PA; Dr. Hancock; and Dr. Watson.
The threshold issue is whether Burling's claims may proceed. Under 28 U.S.C. § 1915A,
federal courts are authorized to review, before docketing, if feasible, or in any event as soon as
practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity. The court must dismiss any
part of the complaint that is frivolous, malicious, or fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief. A complaint
0 \RAO\\'DG\20l6\[(,-0X6X f02 \\pd

is frivolous if it lacks an arguable basis in law or fact. See Denton v. Hernandez, 504 U.S. 25, 31
(1992); Richardson v. Spurlock, 260 F.3d 495, 498 (5th Cir. 2001) (citing Siglar v. Hightower, 112
F.3d 191, 193 (5th Cir. 1997)). "A complaint lacks an arguable basis in law if it is based on an
indisputably meritless legal theory, such as ifthe complaint alleges the violation of a legal interest
which clearly does not exist." Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quoting
McCormickv. Stalder, 105 F.3d 1059,1061 (5thCir. 1997)).

Burling alleged that he was first diagnosed with Hepatitis C in 2003 following a blood
transfusion. Burling has genotype 3, Hepatitis- C Virus, which can cause cirrhosis, gallbladder wall
thickening, and gall stones. Burling asserts that approximately six years ago, he received the
incorrect treatment, which has been proven to exacerbate the Hep-C of genotype 3. Burling states
that in 2010, he was treated with Peginterferon and Ribavirin, which has been known to cause more
problems in genotype 3 Hep-C.
Regarding recent treatment for Hepatitis C, Burling states:
On 04/30115, Plaintiff seen by video-conference with Dr. Khan in
Huntsville Unit Infirmary (HUI). Plaintiff vented his frustration at not
being treated for Hep C. Plaintiff was not examined and received no
treatment or medications. Was told the new treatment (Harvoni)
would be available soon. On or about 05112115 talked to P.A. Ruby.
She examined Plaintiff and informed that liver functioning had
worsened, and he was good candidate for newer treatment. Plaintiff
received no treatment or medications. On or about 05/25115 was seen
and examined by P.A. Faust. Plaintiff was informed his lab results
were real bad and she was to refer to Dr. Hancock for newer Hep C
treatment. No treatment or medication. On or about 07/30115 was
seen by Faust to discuss latest labs. She was to email the liver
specialist for referral for treatment. On or about 09/13115 saw Dr.
Jane Doe on video-conference, also Dr. Khan. Was told liver
condition was worse. Dr. Khan informed that 30,000 people in TDCJ
need Hep C treatment and Plaintiff would not get the newer
treatment. Only 50 people every 90 days. Dr. Khan referred Plaintiff

2

back to Dr. Hancock and ordered an ultra sound. No treatment or
meds. On or about 09/26115 Plaintiff was again seen by P.A. Faust
after complaining liver was painful and could not sleep. She stated
she would not let the liver disease go to[ o] far. No treatment or meds.
On 02/11116 Plaintiff was given an ultra sound, which clearly
indicated that cirrhosis of the liver from Hep C was present. On or
about 04/27116 Jamie [W]illiams, Health Services Practice Manager
was consulted by Plaintiff. She told Plaintiff he would be scheduled
for DMS appointment and treatment would be provided. Never
received the appointment or treatment or meds. On or about 06/01115
Plaintiff contacted Warden Jones on the yard. He discussed his
concerns about lack of treatment for Hep C. Warden Jones assured
Plaintiff that he would get needed treatment. No meds or treatment
and Jones signed the Step One (1) Grievance response on 07110/15.
On an unknown date Dr. Watson was seen by Plaintiff. He indicated
the liver condition was getting worse and Plaintiff would soon
rec [ei ]ve treatment. No meds or treatment have been delivered by any
person to date. Plaintiff was scheduled for appointment with liver
specialist and was in the infirmary as others w[ e]re called for their
appointments, but his appointment rescheduled. This occurred in
April or May of 2016. Talked to Jaimie Williams and she stated
would be rescheduled. Never happened. On or about 06/02/16 saw
P.A. Faust and was examined. She was to send email to liver
specialist, as lab results continued to get worse. No treatment or meds
for Hep C. On or about 06/06116 was seen and examined by P.A.
Faust. Blood in stool and liver pain. She stated the treatment was
needed to halt the cirrhosis and prevent further damage. Was to
schedule another ultra sound. On or about 06/26/16 examined by P .A.
Faust and told would get ultra sound. No meds or treatment for Hep
C. On or about 08/31/16 talked to Mrs. Picket in reference to medical
records. Was not given latest ultra sound results that show liver
cirrhosis is worse. On or about 09/01/16 sent I-60 to request treatment
to J aimie Williams and never received a response, grievance pending.
(Docket Entry No. 13, pp. 6-7).
Burling also alleges that the longer his Hepatitis C is untreated, the greater the risk of
developing liver damage, cirrhosis, and liver cancer.
Burling seeks an injunction compelling prison officials to provide him proper treatment for
hepatitis C virus. Burling also seeks unspecified compensatory and punitive damages.

0 RAO,\TJG\2!llh lh-OX6X lll2 \\Pd

3

II.

Analysis
A.

The Legal Standard

"[I]nadequate medical care by a prison doctor can result in a constitutional violation for
purposes of a§ 1983 claim when that conduct amounts to deliberate indifference to [the prisoner's]
serious medical needs, constitut[ing] the unnecessary and wanton infliction of pain proscribed by the
Eighth Amendment." Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999)(quoting Estelle v.

Gamble, 429 U.S. 97 (1976)). Under the "deliberate indifference" standard, a prison official is not
liable for the denial of medical treatment "unless the official knows of and disregards an excessive
risk to inmate health or safety." Stewart, 174 F.3d at 534 (citing Estelle, 429 U.S. at 104). While
malpractice and negligent treatment do not rise to the level of a constitutional tort, see Mendoza v.

Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993), a claim of"unnecessary and wanton infliction of pain
repugnant to the conscience of mankind," can state a claim of a constitutional tort. McCormick v.

Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997) (citing Estelle, 429 U.S. at 105-106).
To state an Eighth Amendment claim, a plaintiff must allege a deprivation of medical care
sufficiently serious to show that "the state has abdicated a constitutionally-required responsibility
to attend to his medical needs," Bienvenu v. Beauregard Parish Police Jury, 705 F.2d 1457, 1460
(5th Cir. 1983), and that a prison official knew of and disregarded "an excessive risk to inmate health
or safety." Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999) (quoting Farmer v. Brennan, 511
U.S. 825, 837 (1994)). "For an official to act with deliberate indifference, 'the official must both
be aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference."' Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir.
1998)(quoting Farmer, 511 U.S. at 837). "Under exceptional circumstances, a prison official's

0 .Rt\\) \lJG,.'.Olt> lh-OKI>l'i flJ2 11pd

4

knowledge of a substantial risk of harm may be inferred by the obviousness of the substantial risk."
Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994)(citing Farmer, 511 U.S. at 842 & n.8).

Burling complains that medical personnel at the TDCJ-CID did not treat his Hepatitis C
correctly. In Whiting v. Kelly, 255 F. App'x 896, 2007 WL 4180592 (5th Cir. 2007), Whiting and
Tippins, two inmates, argued that the defendants were deliberately indifferent to their serious
medical needs by failing to provide adequate testing and treatment for HCV. They contended that
the policy created and adopted by the Texas Department of Criminal Justice did not comport with
the accepted standard of care for treatment ofHCV. The Fifth Circuit held:
Although they clearly believe that they should undergo additional
testing and drug therapies, such disagreement does not give rise to a
constitutional claim. See Domino v. Tex. Dep 't of Criminal Justice,
239 F.3d 752, 756 (5th Cir. 2001); Varnado v. Lynaugh, 920 F.2d
320, 321 (5th Cir. 1991 ). The district court did not err in granting
summary judgment for the defendants and further did not err in
dismissing the deliberate indifference claims as frivolous.
Whiting, 2007 WL 4180592, at *1.

In McCarty v. Zapata Cnty., 243 F. App'x 792, 2007 WL 1191019 (5th Cir. 2007), a prisoner
brought a civil rights action against county officials, alleging the denial of adequate medical
treatment for his Hepatitis C and adequate psychiatric care for his severe depression while he was
both a pretrial detainee and a convicted prisoner in county jail. The Fifth Circuit concluded that
McCarty introduced no competent summary-judgment evidence establishing that the defendants
refused to treat him for his Hepatitis C. His allegations established, at best, that the defendants failed
to follow the course of treatment that was recommended by the physician who saw him in the
hospital. This was insufficient to establish deliberate indifference. See Domino, 239 F.3d at 756.

0 \RAO-.VDG\20!6\J(,-OXCJX 11!2

\\pd

5

Further, McCarty failed to establish any injury resulting from the alleged denial of treatment for his
Hepatitis C. See Mace v. City of Palestine, 333 F.3d 621, 625 (5th Cir. 2003).
Deliberate indifference is an extremely high standard to meet. An incorrect diagnosis by
prison medical personnel does not state a claim for deliberate indifference. Domino v. Tex. Dep 't
ofCriminal Justice, 239 F.3d 752,756 (5th Cir. 2001) (citing Johnson v. Treen, 759 F.2d 1236, 1238

(5th Cir. 1985)). Rather, a plaintiff must allege facts showing that the officials "refused to treat him,
ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that
would clearly evince a wanton disregard for any serious medical needs." Johnson, 759 F.2d at 1238.
Whether to provide additional treatment "is a classic example of a matter for medical judgment."
Estelle. 429 U.S. at 107. The "failure to alleviate a significant risk that [the official] should have

perceived, but did not" is insufficient to show deliberate indifference. Farmer, 511 U.S. at 838.

B.

Discussion

Burling alleged that he was not provided with the proper medication to treat Hepatitis C. The
record showing an extended history of examinations, diagnoses, and medications rebuts Burling's
allegations of deliberate indifference. Mendoza v. Lynaugh, 989 F.2d 191, 193-95 (5th Cir. 1993).
Burling has not alleged facts supporting an inference that the medical care provided to him was so
inadequate that the defendants knew of and were deliberately indifferent to a substantial risk to
Burling's health. As mentioned above, his own pleadings show that he was regularly examined by
medical personnel and prescribed medications. (Docket Entry No. 13, pp. 6-7). Burling admitted
that he was seen by medical personnel on numerous occasions and prescribed treatment. He
indicates that in 2010, he was prescribed Peginterferon and Ribavirin, which has been known to
cause more problems in genotype 3 Hep-C. His pleadings show that medical personnel were

0 IRAO\VDG\2016\16·0868 fll2.\\pd

6

regularly monitoring his liver function from April 2015 to August 2016. Medical personnel also
performed ultrasounds to evaluate Burling's liver function.

Burling complains that medical

personnel unjustifiably delayed providing him with a newer treatment for Hepatitis C.
"Disagreement with medical treatment does not state a claim for Eighth Amendment indifference
to medical needs." Norton v. Dimizana, 122 F.3d 286,292 (5th Cir. 1997). Burling has not alleged
facts that, if proven, would support the inference that the defendants were aware of, and disregarded,
a substantial risk of harm to Burling.
Burling's claim based on deliberate indifference to his serious medical needs is DISMISSED
as frivolous. 28 U.S. C. § 1915A(b)(I). Any remaining pending motions are DENIED as moot.
The TDCJ-CID must deduct twenty percent of each deposit made to Burling's inmate trust
account and forward payments to the court on a regular basis, provided the account exceeds $10.00,
until the filing fee obligation of $350.00 is paid in full.
The Clerk will provide a copy of this order by regular mail, facsimile transmission, or e-mail
to:
(1)

the TDCJ- Office ofthe General Counsel, Capitol Station, P.O. Box 13084, Austin,

Texas, 78711, Fax: [phone];
(2)

the Inmate Trust Fund, P.O. Box 629, Huntsville, Texas 77342-0629, Fax:

936-437-4793; and

7

(3)

the District Clerk for the Eastern District of Texas, Attention: Manager of the

Three-Strikes List, [e-mail].
SIGNED at Houston, Texas, on

d"?l~

[

.

VANESSA D. GILMORE
UNITED STATES DISTRICT JUDGE

0 \RAO\VDG\2016\16-0H6H.f02 wpd

8

~